Abortion Stays Legal In Michigan, For Now
“There is no greater violation of bodily integrity than to tell a pregnant person, you must remain pregnant under pain of prosecution.”
Editor’s Note: This article was updated over the course of the hearing.
First things first — a huge victory. Judge Cunningham of the Oakland Circuit Court ordered a preliminary injunction blocking Michigan’s abortion ban on Thursday. This means abortion will likely remain legal in MI until the courts — or voters this November — fully resolve the issue.
“The harm to the body of women and people capable of pregnancy in not issuing the injunction, could not be more real, clear, present, and dangerous to the court,” he said.
But how did Cunningham get to this critical decision?
When we left off Wednesday night, Dr. Bagdasarian, Chief Medical Executive for the State of Michigan, had taken the stand and described the shocking discrepancy between the dangers of abortion versus pregnancy.
“The complication rate for abortions is extremely low,” Dr. Bagdasarian said, “about 2.5 complications per 10,000 procedures.
Complications from pregnancy are a hundred times higher.
“As someone who experienced pregnancy complications, that resonated,” said Jill Habig, founder and President of PRP.
“We’re talking about an abortion procedure that is safe, that is often necessary to protect women’s health and ensure their ability to have children in the future if they choose, and yet that safe procedure could be criminalized.”
On Thursday morning — the second and final day of the hearing — Dr. Priscilla Coleman and Dr. Giana Cazan-London were called as witnesses for the defendants, arguing against the preliminary injunction. They were cross-examined by Jonathon Miller of Public Rights Project and Melvin Hollowell of the Oakland County Prosecuting Attorney’s Office, respectively.
Dr. Priscilla Coleman, a Professor of Human Development and Family Studies who recently retired from Bowling Green State University, was brought to trial as an “expert” on the statistical correlation between abortion and mental health.
“The bottom line conclusion is that abortion increases the risk significantly of women experiencing mental health problems,” Coleman told the court. She said her studies pointed to “anxiety of various forms” and “post-traumatic stress disorder, generalized anxiety, depression, increased risk for suicidal thoughts and behaviors…and actually committing suicide.”
Jon Miller asked Dr. Coleman if she was familiar with the 2008 report from the American Psychology Association, as her opinions and conclusions are not consistent with its findings.
While researchers found that some studies indicate that some women do experience sadness, grief, and feelings of loss following an abortion, “The best scientific evidence published indicates that among adult women who have an unplanned pregnancy, the relative risk of mental health problems is no greater if they have a single elective first-trimester abortion or deliver that pregnancy,” said Brenda Major, PhD, and chair of the APA abortion task force.
Whether there are mental health fallouts associated with abortion is a keenly separate issue from whether or not people should have a choice to go through with that process. The human experience and our internal emotional landscape are not cleanly delineated monoliths.
Abortion can be an undeniably right decision and you can feel conflicted about it.
“I was struck by the fact that the opposing side’s testimony could be boiled down to the point that abortion is sometimes a bad decision for women to make,” said Habig. “Such an argument might be true for some women, but it provides no justification for the idea that that decision should be a criminal one, or that women are harmed by having the choice available to make.”
We’re all forced to make difficult decisions that may be accompanied by painful, complicated feelings, but that doesn’t negate the fact that it was the right choice. What about postpartum depression or anxiety? as my colleague Hilary Chan pointed out. Does that all-too-common sadness mean having the baby was the wrong decision?
Of course not. But the defendant’s logic, taken to its natural conclusion, would have us legislate against anything that might cause us psychological duress.
Women and people who can carry babies are in full possession of our wits and possess the wherewithal to determine what is ‘worth’ potential pain as we move through our lives.
“To suggest that because some women make a mistake, that all women should be denied the right to choose, is insulting to our judgment and humanity,” said Habig.
Attorney Melvin Hollowell then cross-examined Dr. Giana Cazan-London, who has a specialty in maternal and fetal medicine. He told graphic, violent, true — and local — stories of rape and incest, asking Cazan-London whether she would grant an abortion under any of these scenarios.
For Megan Becconsall, a legal intern at PRP, she was struck by the seeming necessity that these brutal stories had to be told in the courtroom. She felt “that one class of violence against women has to be exploited, essentially, to prevent another.”
Whether kidnapped, stabbed, raped in a mental health treatment center or impregnated by a drunk father, “You would not perform that abortion,” asked Hollowell. “If she came to you, as you described yourself — a physician that does high-risk pregnancies — you would not perform that abortion, would you?”
“No, I would not,” said Cazan-London.
Judge Cunningham ultimately dismissed the testimonies of Coleman and Cazan-London as so dubious as to be not credible, giving them “no weight” in his decision.
The most powerful moment of the trial came from the closing remarks of Michigan Deputy Attorney General Christina Grossi, whose impassioned call for abortion access underscored the decades of pain, frustration, and dehumanization that underpin the relentless pursuit to control our bodies.
It was vulnerable, personal, and an important departure from what our justice system typically asks of its attorneys.
“Women are upset because in June of 2022, they woke up one day to find that with a stroke of the pen, they had been relegated to second-class citizens in their own homes,” she said.
“And women are upset and angry because in the greatest country in the world, we are being denied access to critical healthcare.
And women are upset and angry because our bodies are regulated and they are politicized in ways that men’s bodies are never politicized or regulated. And women are upset and angry because some people suggest that our rights are subject to popular vote while a man’s rights are bestowed upon him at birth.
And some women are upset and angry because they’re precluded from consulting with their doctors about one of the most intimate and germane issues in a woman’s life, which is when and how to become a mother. And some women are upset and angry because they have done this all before and they’re upset and angry because they realize now their daughters have to do it again.”
Jon Miller says that government lawyers are often trained to keep their advocacy impersonal — the idea is to prosecute without fear or favor — but often the work is personal, interacting with attorneys’ lives and their own values.
“Who they are as a person animates what they do and why they do it,” says Miller, “which is why Christina’s closing felt so compelling to me. It beautifully wove together the real experience of providers and patients right now — the very case that Christina herself had crafted — and the personal experience as a woman in Michigan directly affected by the state of the law, and feeling like a second-class citizen. It was authentic, genuine, and powerful. It made for an effective summation, and unlike any I had seen before.”
Over and over again as Grossi crossed and uncrossed her arms, I felt myself start to tear as she publicly fought for her own personhood. I could see her push back against the trappings of lawyerly distance that the circumstances and the courtroom deem “Professional,” a necessary negating of the very self that will suffer under the same yoke of paternalistic punishment of every Michigan woman should abortion not be protected.
There will inevitably be more litigation to come in Michigan — the other side will likely appeal Judge Cunningham’s ruling, and there may be hearings in the appellate courts in the coming weeks.
In the meantime, the Michigan Supreme Court can either take up the case and grant reproductive rights at the state level or The Reproductive Freedom for All bill heads to the ballot this November where Michigan voters could — once and for all — codify a women’s right to choose.
DAY 1 OF THE HEARING
America just had its first live witness testimony on abortion since the fall of Roe.
The hearing began yesterday afternoon (and concluded today) at the Oakland Circuit Court in Pontiac, Michigan to determine whether a preliminary injunction (PI) will be ordered against MI’s criminal abortion ban, a zombie law hailing from 1846 that makes no exception for rape or incest, allowing abortion only in a “life-saving” event for mothers — dangerously vague language that could land abortion providers in prison with felony charges.
The outcome of this hearing is poised to determine the fate of more than 2 million women across Michigan, and could prove to be a powerful playbook for other states looking to protect abortion.
Currently, the court has issued a temporary, emergency injunction against the abortion ban, but if the court issues a PI — which could happen tomorrow morning — abortion will likely remain legal in Michigan until the MI Supreme Court makes a final decision about the constitutionality of the old law.
Here’s a breakdown of yesterday’s hearing, where Michigan doctors and senior public health officials took the stand to fight for Michigan’s abortion rights and help determine the future of state power in America.
Deputy Attorney General Linus Banghart-Linn’s opening remarks centered on the allegations of a constitutional violation — specifically the notion of bodily integrity.
Michiganders, Banghart-Linn explained, have the right to substantive due process, meaning that “individual liberties are so important that there are certain things that are taken off the table as far as what the government can do to us,” said Linn.
“There is no greater violation of bodily integrity than I can think of than for the criminal law enforcement authority of the state of Michigan to come to a person who is pregnant and say, you must, despite any health risks, despite any physical, psychological, despite the advice of your physician, despite any conditions that you may have, you must remain pregnant under pain of potential prosecution.”
Linn went on to say that their main argument for the preliminary injunction is also based on the sexually discriminatory nature of the abortion law, which is predicated on 19th-century mores more concerned with “controlling the destiny of women” — not with the protection of fetal life — and this violates the equal protection clause.
“To put it crudely,” he said, “it’s to keep women in their place, right?”
Finally, Linn also surfaced arguments around whether the state constitutional provision is co-extensive with corresponding federal provisions — he says their argument sits squarely under the Michigan constitution and not the federal constitution, ie, the state of Michigan shouldn’t and doesn’t need Roe to protect abortion across the state.
“The state has an interest and a duty in promoting public health,” said Linn, and abortion access is a fundamental piece of Michigan’s collective welfare.
“When a whole category of necessary healthcare is taken off the table because of the threat of criminal enforcement…that is a harm against the state because the state has an interest in a duty to promote public health,” Linn said. This also includes “healthcare providers, hospitals, hospital systems, and doctors on what they need to do their job.”
David Kallman, attorney for the defendants, centered his opening argument on the simple premise there that is no right to abortion under Michigan’s constitution — “the right to abortion was always been derived solely from the federal constitution” — and as Roe was overturned, so too was Michigan.
He also took umbrage with Linn’s sentiments on interpreting what lawmakers intended in 1846.
“I don’t know who they talked to that lived 170 years ago in the mid 1800’s, ‘’ he said. “They somehow just know that was the basis for the courts or for the legislature’s laws that were passed back then — to put women down. Are you kidding me?
There’s nobody alive today that could say that they knew what those people were thinking at the time. You can only look at the actual language.”
He moved on to rejoin Linn’s arguments on bodily integrity insisting that bodily integrity “only protects inaction — things like refusing medical treatment. So a person obviously has the right to refuse medical treatment. That’s their bodily integrity, but it does not protect affirmative acts like ending a life.”
And as for Governor Whitmer, Kallman stated she represents the state of Michigan as the chief executive officer but she does not represent everyone who lives in the state of Michigan on civil lawsuits, “just because she doesn’t like a law. The governor represents all women, all doctors, all hospitals, abortion providers in the state of Michigan — really? The governor has no authority to represent pregnant mothers or doctors or abortion providers or to bring a lawsuit on their behalf.”
Kallman then pivoted sharply into fallacious hyperbole stoking pro-life fears that an injunction would be synonymous with a late-term abortion free for all. A separate Michigan law that is not at it issue today places restrictions on abortion after “quickening” which is interpreted to mean viability. If the PI is granted tomorrow, this law would not be disturbed.
“Your honor, understand if you grant this preliminary injunction, that means abortions can be done at any point in the pregnancy up to the moment of birth without restriction…any baby could be killed right up to the moment of birth.”
Legally, this is not true.
He also took to the 14th amendment, arguing that the US Constitution provides that “no state shall deprive any person of life, Liberty, or property without due process of law nor denied any person within his jurisdiction…And it is our contention that applies to unborn persons.”
Eli Savit — Prosecuting Attorney for Washtenaw County — then offered his opening statement, surfacing further concerns on what it means for abortion only being available to protect the life of a pregnant person.
“Nobody knows if ‘necessary’ means a 30% chance of death, a 51% chance or a 100% chance of death. It’s no exaggeration to say that if MCL 750.14 goes into effect women will die.”
Karen McDonald, Oakland County prosecutor, used her time to talk about the dire consequences of the abortion ban on victims of domestic violence, a vulnerable population she works closely with.
“For these women and girls, the notion that they can be forced to carry an unwanted and an involuntary pregnancy to term, that they should instead endure the risk by remaining pregnant, which we know in increases the risk of becoming revictimized — that somehow at the end of it all, there will be willing and stable potential adoptive appearance to take over? That is an illusion,” McDonald said.
“For these victims, remaining pregnant is not joy, anticipation, baby showers and monthly appointments your honor, it is panic. It is often the loss of a job or housing. It is facing the reality of being trapped in an unsafe, unstable environment and bringing a child into it — who she cannot support or protect.”
She offered worrying statistics on the likeliness of women being killed by their abuser when they have existing children who are not related to that abuser. She said that pregnant women are also more likely to be killed by their abuser while they’re pregnant. Data shows that homicide is a leading cause of death during pregnancy, and according to a recent study by the American College of Obstetricians and Gynecologists, one in six abused women is first abused during pregnancy.
“So what does a pregnant abuse victim do your honor? She can either take her chances carrying the pregnancy to term and become even more dependent on her abuser, or she can seek an illegal, unsafe abortion, which carries its own risk and will essentially lack her out from the protections of the criminal justice system…These victims have no good options without a preliminary injunction.”
Dr. Harris, an OB-GYN and Associate Chair of Obstetrics and Gynecology at University of Michigan’s Michigan Medicine, finally took the stand as the first witness, examined by Chief Deputy General Attorney Christina Grossi.
As an abortion provider, Harris echoed the fears of McDonald and Savit, offering first-hand insight into the confusion, frustration, and danger around the abortion access whiplash.
As Deputy Attorney General Linus Banghart-Linn said at the top of the hearing: “On August 1st…when you woke up that morning, abortion was legal in Michigan. When you had lunch, it was illegal. When you had dinner, it was legal.”
Dr. Harris said there are instances where “your pager goes off and you go sprinting” — there are clear life-preserving abortions — but that’s not the bulk of the patients she cares for in a hospital setting. The majority of her work is accompanied by profound ambiguities that put her in the crosshairs of becoming a felon.
She described one instance where they see a rupture of the amniotic bag too early — at 17, 18, 20 weeks.
“And it’s very predictable that some patients will develop an infection and sometimes a severe infection. And when that happens…we will tell patients that some women in this situation will end the pregnancy…
Would they have to wait and get an infection before we could offer that, or do they have to get an infection that becomes so severe that it’s life threatening before we can do that?”
The sudden changes in the Michigan’s abortion law has already profoundly impacted the OB-GYN practice at the University of Michigan.
“It was very hard to sit with someone who is requesting your help and to say,
‘I may not be able to help you,’” said Harris.
“Patients had been sometimes bounced from other clinics because they had underlying health conditions that made them not be able to get care elsewhere. There was a lot of distress. I saw a lot of people feeling panicked inside, but trying to have a non panicked face for the patients that they were seeing.”
And without abortion being legal, there’ll be gaps and deficiencies in future OB-GYNs training.
“If they can’t learn how to do it now, they won’t be able to provide even the life saving abortions later, that would be permitted under the law,” said Harris.
Finally Grossi asked Dr. Harris whether she was familiar with the work of Dr. Priscilla Coleman, a psychologist who has predicated her career on publishing studies arguing the correlation between abortion and mental problems. Coleman took the stand this afternoon.
Kallman objected that Harris had no basis to criticize her work but was overruled.
“My overall opinion, said Dr. Harris, “is that her work is flawed…she creates causal links when they don’t exist…the problem with her work is she looked at the lifetime history of a mental health illness — she didn’t actually only look at mental health diagnoses, subsequent to the abortion.”
Dr. Natasha Bagdasarian, Chief Medical Executive for the State of Michigan, took the stand next and described the huge differential of the dangers associated between abortion and pregnancy.
“In the medical community, we recognize that pregnancy is a risky time in a woman’s life…Every year, approximately 12 to 13 women die of pregnancy related causes in Michigan. Pregnancy is related to complications that range from hypertensive emergencies, clotting issues, hemorrhage infections…
Abortion, as we know is an exceptionally safe procedure and by subjecting women to carry pregnancies in a forced manner we are subjecting them to potentially negative health outcomes that they are not choosing for themselves.”
Bagdasarian also spoke at length on abortion access being a racial justice issue as well.
“When we look at African American women and health outcomes, we know that maternal mortality is three times higher for African American women as it is for white women in the state. And when we look at infant mortality, we know that African American babies are twice as likely to die in their first year of life as white babies.
“We also know that the majority of abortions procured in the state of women are by African American women. And so if we subject those women to forced pregnancies, they are more likely to have worse outcomes.”
Bagdasarian also returned to Banghart-Linn’s opening statement on abortion being a public health issue as it impacts outcomes for women at a population level.
“The complication rate for abortions is extremely low — the complication rate is 2.5 complications per 10,000 procedures. And if we compare that to complications from pregnancy, the complications from pregnancy related causes are about a hundred fold higher.”
